Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I rise to speak in support of the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 and I do so on the basis of also indicating support for the amendments to this bill, which were made public yesterday by the government and were the consequence of an agreed set of recommendations from the Parliamentary Joint Committee on Intelligence and Security. Together these represent the package which is being put before the parliament today and, as I say, we indicate support for that.

Citizenship of our country is as an important incident of a legislative act as has occurred in this place since Federation. It is the basic building block of our society. It sets out critically the rights that all of us have as inhabitants of this country and members of this society. Equally, it establishes obligations that we have to each other as members of this country, as citizens of Australia. So when we talk about questions of citizenship and look at amending this act in particular, we are dealing with deeply serious matters, which, by definition, go to the very core of what it is to be an Australian.

The idea of potentially stripping dual citizens who engage in some form of terrorist related activity was in fact one raised by the government as early as January of last year, 2014. It is an idea which has been in the public domain in Australia for some time. It was re-enlivened as a discussion this year—and I note the member for Bass is present and he wrote an article, I think, on 16 February this year articulating, again, a view that persons, who engage in terrorist related activity who are dual citizens, ought to be subject to having their Australian citizenship stripped.

Again, this is a debate which has continued from that moment. It is a debate which has concerned at times the opposition. I think it is a debate which has been difficult. It is a debate which many in Australia have found uncomfortable. But it is a debate, nevertheless, that is important to have. Because it is a debate, on the one hand, that deals with legitimate national security issues, which are about supporting a principle that has in fact been in the Australian Citizenship Act from the very time it was introduced into this parliament in 1948—that is, that a person who takes up arms against Australia in the army of another nation, who is a dual citizen, automatically loses their Australian citizenship. That has been on the statute books in this country since 1948.

We made clear from the point of view of the opposition at the very outset that we were prepared to have a sensible updating of that principle, noting that the kinds of conflicts in which we find Australia engaged today are not necessarily the traditional state-on-state conflicts which defined the first half of the 20th century. When you are looking at terrorist organisations and entities like ISIS, applying that principle in a modern context does require some consideration of amending the Citizenship Act, and we were prepared to do that.

On the other hand, we were concerned that, in a country which has the second highest proportion of its population born outside of its borders of any country in the world today—in other words, a country which has a huge component of its population who are dual citizens or at least are capable of being dual citizens—it is absolutely critical that we do not walk down a path where we suddenly say that there are two classes of Australian citizens. There are those who are single Australian citizens and those who are dual Australian citizens, and somehow there is a different set of criteria which applies to these different classes of Australian citizen. We can never be a party to that. The opposition will never be a party to that, and I think it is very important that this parliament never endorses any sentiment of that kind. I do not suggest that on the part of the government but I do note that there were many in various migrant communities who spoke to me about their concern that this debate raised that question, so we were very mindful that the way in which this debate be conducted and where it ultimately landed were done in a manner and ended in a result which did not see us unwittingly creating two classes of Australian citizens.

The bill we are currently debating was ultimately introduced into this parliament on 24 June. It was referred very quickly to the Parliamentary Joint Committee on Intelligence and Security as it should have been. This committee worked diligently through members of both the government and the opposition to look at the proposals that were being put forward and to see how they could be best managed to get the result that sought to address the genuine national security issues which were clearly at issue here. I commend the work of all of those on the Parliamentary Joint Committee on Intelligence and Security, because it was a fantastic piece of work that they undertook. Their report stands as a testament to the way in which people in this place across the political spectrum can work together to come up with a really good outcome. Their recommendations are the basis of the amendments which were circulated yesterday. They make this much better as a piece of legislation.

As part of my contribution today I want to deal with some of what the committee looked at. One of the first things that the committee considered was the question of the constitutionality of the bill. There were a number of eminent legal theorists and jurists in this country who gave evidence before the committee, raising serious concerns about the constitutionality of the legislation and particularly whether or not it offended in some legal form the separation of powers as they are set out in the Constitution. It has to be said that a number of the opposition members on the committee shared the concerns that were being raised by a number of those who put forward those submissions, and indeed a discussion of that can be found from paragraphs 3.37 to 3.43 of the PJCIS report. I think that is an important statement around this question.

At the heart of the proposition that what we are dealing with today is constitutional, the government assured us, was advice from the Solicitor-General indicating that this was indeed a constitutional form of legislative enactment. The opposition members of the Parliamentary Joint Committee on Intelligence and Security asked to see that report—not an unreasonable request in circumstances where there had been the issues raised by those giving evidence before the committee. Sadly and regrettably from our point of view, the government was not prepared to release the Solicitor-General's advice. I think that is regrettable. That said, the government did provide, by way of a letter dated 27 August 2015 from the Attorney-General to the shadow Attorney-General which is referred to in the report, an assurance that from the government's point of view the legislation that is before us today is constitutional and that that was the effect of the advice provided to the government by the Solicitor-General.

Here is where that leaves the opposition. This is at the end of the day the government's legislation. It is for the government to establish the constitutionality of any piece of legislation it puts before this parliament. It has, by way of that letter on 27 August this year, assured the opposition and, through the committee, the Australian people that what it has put before this parliament is constitutional. The question of constitutionality lies with the government, and ultimately it will be for the government to bear the responsibility of that. On that basis we are prepared to move forward in dealing with this legislation.

The committee also came up with 26 substantive recommendations providing for amendments in respect of the legislation. As I said at the outset, they, together with the initial bill, form the package that we are dealing with today. In essence, this package provides for the stripping of citizenship from dual nationals who engage in terrorist related activities in three different circumstances. For the benefit of those listening: the reason this is focused on dual nationals relates to Australia's commitment not to render people stateless. There is a requirement that somebody be a dual national; otherwise, the stripping of a sole national would render somebody stateless, which would be contrary to Australia's international obligations.

There are three circumstances in which this may occur. Firstly, by way of conduct, where a dual citizen, by virtue of the conduct they have taken, has engaged in a way which is inconsistent with their allegiance to Australia. The phrase 'conduct which is inconsistent' is one that was examined very closely by the joint committee. This idea of engaging in a form of conduct, obviously terrorist related conduct, which is inconsistent with someone's allegiance to Australia automatically giving rise to loss of their citizenship is clearly a significant step to take. But that was the first mechanism by which this package sought to remove someone's citizenship—I will come back to the way in which that has been dealt with by the committee in terms of a number of the recommendations associated with that.

Secondly, where a person has engaged in the service of or has been fighting with a declared terrorist organisation. There is a provision for the Minister for Immigration and Border Protection to declare a subset of the already declared terrorist organisations to be the relevant organisations for the purposes of this bill. In a sense, this is the most obvious updating of the legislation from the original intent in 1948. Whereas that was about fighting in the service of an army of a foreign country fighting against Australia, this is engaging in the service of or fighting with a terrorist organisation which has been declared for the purposes of the legislation. An act of that kind would result in you automatically losing your citizenship. Thirdly, if you have actually been convicted of a terrorist related offence, and those offences are prescribed in the legislation, then you would lose your citizenship. So the circumstances are: losing it by engaging in terrorist related conduct, losing it by virtue of fighting with a registered terrorist organisation or losing it because you have actually been convicted of a terrorist related offence. That is the basic architecture of the legislation which is before us today.

At its broadest, that of course had the potential to apply to an enormous number of Australians. At its broadest, if we were talking about a situation where anyone who had the potential to be a dual citizen could, at the discretion of the minister, be stripped of their citizenship if they were engaged in terrorist related conduct, it is potentially something that could have applied to millions of Australians, and we had concerns about that. Indeed, many of the committee's members had concerns about that, and that was the question that was dealt with at some length by the parliamentary joint committee—in a sense, to nail this down and to have greater focus in relation to the package before us. That focus has now been achieved by the amendments that were announced yesterday, and I want to go through them.

There were a number of amendments that were introduced yesterday. I will not go through all of them but I will go through a number of them. The provisions relating to those convicted of a terrorist related offence have now been amended such that the list of offences to which this section relates has been reduced. For example, an offence relating to the destruction of Commonwealth property, which was in the original bill, is no longer included in the offence. The provisions in the bill relating to conduct inconsistent with the allegiance to Australia have also been amended such that they now apply to dual citizens who have engaged in the conduct offshore only or who have engaged in conduct onshore and have subsequently left Australia. This is a very important measure in reducing the scope of this package. The provisions in relation to losing or having your citizenship stripped by engaging in terrorist related conduct can only occur in respect of conduct which has occurred offshore or where someone has engaged in conduct onshore and then fled the country. In that sense, we are not talking about this having application literally to the millions of Australians who are dual citizens or who may have access to dual citizenship. We are talking very specifically about people who are offshore engaging in those activities or people who have fled. That alone reduces the potential application of this bill from millions literally down to dozens, and it focuses the bill and this legislative package very directly on the issue that it is seeking to deal with.

The bill outlines a set of criteria now for the minister to consider before declaring a terrorist organisation for the purposes of the act. The declaration of terrorist organisations will also be a disallowable instrument, meaning the parliament has greater oversight in respect of that process. The term 'in the service of' as it relates to serving with a terrorist organisation has been clarified for the purposes of section 35. This amendment now ensures it is clear that acts done under duress or unintentionally—for example, a parent covering the living expenses of a radicalised teenager—would not be covered by the act. All provisions will only apply in the event that the minister receives an adverse security assessment in relation to the dual citizen.

The minister will now be required to provide or make reasonable attempts to provide the dual citizen with notice of the revocation unless the notification would compromise ongoing operations or national security. The decision not to provide notice must be reviewed every six months thereafter. Importantly, under this revised bill revocation of a person's citizenship will not affect the citizenship of other family members, including children. Based on the committee's recommendation, the bill now has much more limited retrospectivity than it originally had when put before the parliament.

Those dual citizens who have been convicted of a serious terrorism offence within the past 10 years and who were sentenced by a judge to a minimum of 10 years in prison for that offence may have their citizenship revoked under the new laws. As a result of amendments recommended by the committee, revocation of citizenship in these limited circumstances will be subject to the minister's discretion, having regard to a number of criteria including current security threats. The government will be required to publicly report every six months on the number of times the changes have been applied and to provide a brief statement on the reasons they have been applied. Finally, and really critically, a person affected by any of these changes will have the right to appeal the loss or revocation of their citizenship to the Federal Court.

All of that represents a significant narrowing of the package that we have before this parliament in limiting ministerial discretion and now allowing review and appeal rights to those affected by decisions under this legislation. This is a far better package. This has considerably reduced the degree of retrospectivity associated with this package. As I said, perhaps most significantly, the overall scope of the number of Australians that this can be applied to literally has shrunk from millions down to dozens. But it is important, in saying that, that this legislation now exists, because we have struck the balance between two really important concerns which are at tension with each other. I think what we now have before the parliament can in no way suggest that there is a piece of legislation which creates two classes of Australian citizens—there is no way at all given the very narrow focus of the bill before us.

But, equally, it is important to acknowledge this fact: we saw Australian citizens participate in fighting in Afghanistan. A number returned to Australia who had had significant experiences in that conflict and we would want, for the sake of the security of the Australian public, to be very concerned about their activities. There are more people that we know of, Australian citizens, who are today fighting in Iraq or in Syria against Australian forces and we are going to have to engage in one form or another with that population of Australians when this conflict is over be they in this country or be they staying overseas. This is not the way in which we deal with every one of them but it does represent a very important tool available to our national security agencies in order to deal with those who have been radicalised in that process and those who may well present a significant danger to the Australian public. So it is a very important legislative reform that we have before the parliament today so that we can put the safety of Australian citizens as being paramount and this legislation does that. And I think it does that in a way which does not have any of the adverse effects that many legitimately were concerned about. But I think the work that has been done by the committee and the amendments that form part of this package have struck that balance correctly, which is why we now support this legislation.

Finally, I must say something about what has occurred in the last 48 hours because there has been some media speculation about how this bill has progressed to the parliament. I say it with regret actually but I say it because I think it is important that we get the record straight. As I understand it, this went before the government party room on Tuesday. From the point of the view of the opposition, we were provided with copies of the actual amendments—13 pages of amendments—which give expression to the 26 recommendations of the committee at about a quarter past two on Tuesday. That was done through my office and those amendments were provided to us on an embargo basis, meaning we could not share them beyond our office, and obviously that limited the ability for this to be considered by the opposition. We had a briefing from the government at four o'clock on that day—and when I say 'we' I mean I had a briefing. I asked for the shadow attorney-general to be present, clearly because he had been leading the opposition's efforts as a member of the Parliamentary Joint Committee on Intelligence and Security and in giving legislative expression to arrangements which he had as big a hand in securing as any person. It made sense that he was there but it was indicated to us that he would not be welcome at that briefing.

Of the 26 recommendations, in the 35- to 40-minute briefing I received, we were able to work through 12 of them and how they had been translated into legislative form. At that point, we were then told that this was going to be put in the parliament, nevertheless, for debate yesterday morning. That ultimately would have been a very regrettable step, to have required the opposition to walk down the path of dealing with this in circumstances where we had not had time to go through what were considerable amendments to an arrangement which was the basis of the consensus between the government and the opposition.

There was a press release that was issued by the government on Tuesday night that came out at about 7:30, which had in it a table which correlated the recommendations of the committee with the various provisions of the amendments—that was a sensible table to put forward. What it made clear was that the exercise of writing these amendments was absolutely one of translating the recommendations into legislative form and that was the exercise that we were seeking to work through. Finally, we indicated that we could circulate those amendments yesterday morning and they became public then. What we were asking through all of this was simply to have the time necessary to have the proper briefing so that we could—

Mr Nikolic interjecting—

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

Order! The member for Bass.

Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

What we were seeking was the necessary time to assure ourselves that the amendments that we did not see for the first time until 20 past two on Tuesday that they were able to be properly debated on the Wednesday morning.

Mr Nikolic interjecting—

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

Order! The member will be heard in silence.

Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I make this point: this is an issue which has been in the public domain since January 2014. The member for Bass, who is busy interjecting, wrote his article in February of this year. For want of 24 hours to give the opposition to give the proper time to scrutinise these amendments, games were being played such as to put this into the parliament and to deny us that opportunity. Now all of that echoes silly behaviour which seeks to make political gain out of matters of national security. And when one party seeks to make political gain out of national security—

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

Order!

Andrew Nikolic (Bass, Liberal Party) Share this | Link to this | Hansard source

I rise on a point of order. Will the honourable member accept an intervention under standing order 66A?

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

The member for Corio has the call. Please proceed.

Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

National security is not a matter which is owned by either party. National security is something which is owned by the vast majority of this parliament across the political spectrum. The vast majority of members of the Labor Party and conservative parties, evidently, have enormous concern for the security of our fellow Australian citizens. It was a Labor Prime Minister who created Australia's navy. Labor Prime Ministers were in power at the critical moments of both the First World War and the Second World War. It was a Labor Prime Minister who established ASIO. Labor has as strong a history in relation to national security as any party that has served in this parliament. But when we see one party consistently trying to use national security as a means by which it gets political advancement—and that is what we have witnessed over the last 48 hours—that belittles the significance of Australia's national security and seeks to make partisan an area of policy which is simply not.

What we have seen in the way this opposition has acted—be it in respect of metadata, be it in respect of this issue in relation to stripping dual citizens, be it in respect of Australia's engagement in armed conflict overseas, be it in respect of strengthening the character test—is an opposition which has been absolutely willing to work through, in a bipartisan and a constructive manner, national security issues to reach a very sensible conclusion. But all we have asked along the way is what the Australian people would expect of us along the way—that is, that we use our wit and our intellect, and we review everything that is put before us thoroughly. That is all that we sought to do in the last 48 hours by seeking a day in which we could examine amendments against the backdrop where this has been in the political domain since January of 2014.

The government really does need to think very carefully about the way in which it handles these matters. This has been, in many respects, an exemplary process, one which has led to a very sensible set of amendments and a legislative package which creates the balance between dealing with a very legitimate issue of national security, whilst making sure that there are not a whole lot of other adverse consequences which people legitimately have concerns about as well. And we got there. We got there by working through on this in a constructive and bipartisan manner.

But it behoves all of us, in this place, to ensure that the way in which we engage, when it comes to national security, is not to seek to make this an issue which belongs to one party rather than to the other. And because that has not occurred in respect of this legislative package, I am pleased to say that the opposition supports it.

Debate adjourned.